Bombay High Court
Mahesh Vasantrao Motaphale vs The State Of Maharashtra on 7 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 2762
Author: M.S.Karnik
Bench: S. S. Shinde, M. S. Karnik
44.wpst 3077.20.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION STAMP NO. 3077 OF 2020
Mahesh Vasantrao Motaphale
(Prisoner No.C-11780)
Age 52 years, Occ.Agril.
R/o.New Mondha, Gorakshan Road,
Kadbi Mandi, Parbhani, Tq & Dist. Parbhani
(At present Nashik Road Central Prison, Nashik) ....Petitioner
Vs.
1. The State of Maharashtra
Through the Secretary
Department of Home,
Maharashtra State, Mantralaya,
Mumbai 32.
2. The Superintendent,
Nashik Road Central Prison,
Nashik, Dist.Nashik. ..... Respondents
Mr.Prabhanjan Gujar, for the Petitioner.
Mr.J.P.Yagnik, APP for the Respondent - State.
CORAM : S. S. SHINDE &
M. S. KARNIK, JJ
RESERVED ON : 03rd DECEMBER, 2020
PRONOUNCED ON : 07th DECEMBER, 2020
JUDGMENT ( PER M.S.KARNIK, J.) :
. Rule. Rule made returnable forthwith and heard with the consent of learned Counsel appearing for the parties. 1/5
44.wpst 3077.20.doc
2. By this Petition fled under Article 226 of the Constitution of India, the petitioner prays that he may be released on emergency Covid parole in terms of the notifcation dated 08/05/2020 of the State of Maharashtra.
The brief facts of the case are :
3. The petitioner was convicted on 22/03/1999 by the Sessions Court for the ofence punishable under section 376 (2)
(g) of Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years. The petitioner has undergone 2 years and 7 months of imprisonment. The petitioner was on bail since the date of his conviction by the Sessions Court. Nothing adverse is placed on record as regards the conduct of the petitioner during his release on bail.
4. Learned Counsel for the petitioner invited our attention to the order dated 28/08/2020 passed by this Court in Criminal Writ Petition No. ASDB-LD-VC 265 OF 2020 in the case of Kalyan s/o Bansidharrao Renge Vs. The State of Maharashtra and anr.(Coram : R.D.Dhanuka & V.G.Bisht, JJ.). He submits that the petitioner therein i.e. Kalyan Renge is a co-accused in the very 2/5
44.wpst 3077.20.doc same Sessions case which resulted in petitioner's conviction. It is the contention of the learned Counsel for the petitioner that this Court has released the said co-accused - Kalyan Renge on emergency Covid parole. Learned Counsel therefore submits that on parity and even otherwise in view of the notifcation, the petitioner is entitled to be released on emergency parole.
5. The application made by the petitioner to the respondent No.2 for grant of emergency parole is rejected on the ground that the petitioner is sentenced to sufer imprisonment for more than 7 years and he was never released on parole or furlough. The object of incorporating the clause of last two releases and surrender on time is to ensure the convicts surrender on being released. In the present case, the petitioner was never released on emergency Covid parole. Our attention is invited to the order dated 04/08/2020 passed by the Aurangabad Bench of this Court in the case of Rajendra s/o Shivaji Avhad Vs. the State of Maharashtra in Writ Petition No. 760 of 2020 (Coram : Ravindra V.Ghuge & Shrikant D.Kulkarni, JJ.) and specially to paragraph No. 6 which reads thus :
"6. This Court has thus consistently taken a view that merely because the petitioner had not applied for furlough or parole on at least two occasions prior to moving an application under Rule 19(1)(C), would not be an embargo for considering the 3/5
44.wpst 3077.20.doc application for emergency parole and such request can be considered favorably. The intention of the Government in introducing the amendment to the Rules vide Circular dated 08.05.2020 is to decongest the prisons in view of Covid - 19 Pandemic."
6. The present case is squarely covered by the decision of this Court in Rajendra s/o Shivaji Avhad' case. We fnd that there is nothing adverse as regards the petitioner's conduct while he was released on bail during the pendency of his appeal in this Court as well as Hon'ble Supreme Court. If otherwise the petitioner fulflls the condition of the notifcation, merely because the petitioner has never been released on furlough cannot be a ground to deny him the beneft of the notifcation.
7. In any case, we fnd that in respect of the very same ofence for which the petitioner is convicted, his co-accused - Kalyan Renge has been released on emergency Covid parole. The decision in Kalyan Renge's case applies to the petitioner's case as well. For the same reasons mentioned in the Criminal Writ Petition No. 265 of 2020, even this Petition deserves to be allowed and is accordingly allowed. Hence, the following order. 4/5
44.wpst 3077.20.doc ORDER
(i) The impugned order dated 19/09/2020 passed by respondent No.2 is quashed and set aside.
(ii) The petitioner be released on emergency Covid parole in terms of notifcation dated 08/05/2020 on usual terms and conditions as may be imposed by respondent No.2. The petitioner to strictly abide by the conditions imposed by respondent No.2.
8. Rule is made absolute in the above terms.
9. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(M.S.KARNIK, J. ) (S.S.SHINDE, J.)
Digitally
signed by
Urmila Urmila P.
Ingle
P. Date:
2020.12.07
Ingle 12:43:55
+0530
5/5